New Delhi’s Stand Against Hague

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Our esteemed Partner, Mr. Jehanzeb Durrani, who possesses rare expertise in international law, has published an article, New Delhi’s Stand Against Hague, on the Indus Water Treaty and recent legal battles in The News:

It is important for India and Pakistan to strengthen their cooperation and communication around the Indus Water Treaty.

Earlier this month, the Permanent Court of Arbitration (PCA) in The Hague confirmed its competence and jurisdiction over disputes related to two of Indiaโ€™s controversial hydroelectric projects: the 330-MW Kishenganga and the 850-MW Ratle, situated on the Jhelum and Chenab Rivers.

Under the provisions of the Indus Water Treaty reached in 1960, the waters of these western rivers and the Indus were allocated to Pakistan. Conversely, the control over the three โ€œeastern riversโ€ โ€” the Beas, Ravi and Sutlej โ€” was given to India.

India is obligated under the IWT to ensure an uninterrupted flow of the western riversโ€™ waters to Pakistan, with interference permitted only for limited purposes, which include domestic, non-consumptive, agricultural uses and hydroelectric power generation. However, any utilisation for hydroelectric power generation must neither disrupt the volume of water reaching Pakistan nor alter the natural timing of the flow.

The recent unanimous decision by the Permanent Court of Arbitration (PCA), established under Article IX (5) of the IWT, dismissed all objections raised by India regarding the proceedings on the aforementioned hydroelectric projects. This provoked a substantial reaction from New Delhi, as clearly reflected in a statement from their Ministry of External Affairs.

The statement contested the establishment of the Court of Arbitration, claiming that it contradicts the IWTโ€™s provisions, and insisted that India cannot be compelled to recognise or participate in proceedings it deems โ€œillegal.โ€

Historically, and in this instance as well, India has described Indus River System issues as โ€œtechnical mattersโ€ rather than disputes, favouring neutral expert forums for resolution. This perspective arises from Indiaโ€™s contention that the IWT is fundamentally a technical agreement, designed to tackle technical issues and furnish technical solutions. This implies that as long as Indiaโ€™s project designs adhere to the IWTโ€™s technical parameters, it can arguably initiate an unlimited number of projects without any obligation to share the underlying reasoning for such developments with Pakistan.

The concern for Pakistan extends beyond the technical aspects of these projects. The wider strategic ramifications associated with water security, which are influenced by the political dynamics surrounding Indiaโ€™s upstream projects and the escalating challenges posed by climate change, are of primary concern. This apprehension is not unfounded.

Statements from Indiaโ€™s senior political leaders amplify these worries. For instance, Nitin Gadkari, the minister for road transport and highways, tweeted in 2019: โ€œWe will divert water from these rivers and supply it to our people in Jammu and Kashmir and the Punjab.โ€ Prime Minister Narendra Modi declared in the same very year that India would stop the flow of โ€œevery dropโ€ of water from the Ravi, Sutlej, and Beas rivers into Pakistan, underscores this concern.

Therefore, the forum of a neutral expert, preferred by India, may not be adequate to address Pakistanโ€™s apprehensions, which extend beyond mere technical details to include geopolitical and national security aspects.

Indiaโ€™s strong reaction to the PCAโ€™s decision could arguably stem from the far-reaching implications this ruling might have. The decision marks the initiation of the next phase of proceedings, set to grapple with broader interpretations and applications of the treatyโ€™s provisions. A particular point of contention is the interpretation of the treatyโ€™s Annexure D.

The PCA ruling represents a significant turning point. For the first time in the 62-year history of the treaty, it paves the way for a comprehensive review of the agreement. Moreover, it opens the possibility for fresh interpretations.ย 

India claims that this annexure justifies extensive hydroelectric construction on the western rivers, as it lists projects India plans to construct or complete, without limiting their number. However, accepting this interpretation may grant India excessive control over these waters, jeopardising Pakistanโ€™s rightful share, an outcome likely unforeseen by the treatyโ€™s original drafters and arguably against the treatyโ€™s spirit of water resource sharing.

Furthermore, the proceedings will also assess the legal implications of past decisions made by various dispute resolution bodies, including the role of the neutral expert in the Baglihar Dam case. John Briscoe, the senior water advisor for the World Bank during the Baglihar case, observed that the neutral expertโ€™s findings, being purely technical, overlooked the realities of India-Pakistan dynamics.

This oversight enabled India to manipulate upstream flows and launch numerous projects on the western rivers, bypassing Pakistanโ€™s strategic concerns. Given these experiences, Pakistan now leans towards comprehensive interpretation forums like the PCA rather than neutral experts.

Therefore, the PCAโ€™s ruling represents a significant turning point. For the first time in the 62-year history of the treaty, there is a way for a comprehensive review of the agreement. Moreover, it opens the possibility for fresh interpretations that align with the evolving norms of international law to be utilised in interpreting the IWT.

Invoking Annexure G and Paragraph 29 of the IWT, it becomes clear that the PCA may employ customary international law as a guiding principle for treaty interpretation. This provision suggests that if an interpretive need arises, international conventions recognised by the parties, as well as customary international law will be drawn upon.

Since the enactment of the IWT in 1960, trans-boundary watercourse law and climate change law have both evolved substantially. With over 11 shared watercourse treaties and nine international legislative pieces signed since then, the PCA can now apply established environmental law principles, such as those set by the Trail Smelter arbitration, where it was ruled that a stateโ€™s resource utilisation should not cause harm to its neighbour.

Furthermore, Indiaโ€™s long-standing contention โ€” that it should be allowed to construct projects using modern scientific expertise and not be constrained by six-decade-old technologies โ€” could be examined in light of the principle of state responsibility. In prior cases involving international water law, the International Court of Justice (ICJ) has typically prioritised legal analysis grounded in real-world conditions over scientific evidence when adjudicating complex disputes. For instance, in the Gabikovo-Nagymaros dispute, even though Hungary presented arguments based on advances in technology and contemporary understanding of environmental impacts, the ICJ chose to resolve the issue by focusing exclusively on the law of state responsibility. This approach was subsequently mirrored in the Pulp Mills case of 2010.

The PCA is anticipated to adopt a holistic approach towards the IWT, taking into account its provisions for communication mechanisms, data and information sharing and its call for future cooperation under Article VII. Unlike Indiaโ€™s description of the treaty as merely technical, a broader reading emphasises its vision of transparent, equitable water resource sharing.

Created over six decades ago, the IWTโ€™s essence contradicts the monopolisation of water resources at the expense of another state. Hence, itโ€™s crucial to acknowledge the treatyโ€™s comprehensive nature, which extends far beyond mere technicalities.

Now more than ever, it is vital for India and Pakistan to strengthen their cooperation and communication around the treaty. The goal shouldnโ€™t be to monopolise river control, as some Indian leadership statements suggest, but rather to recognise that contemporary environmental law discourages such monopolisation by one riparian state over another.

The Indian leadership must acknowledge that while overshadowing international commitments might serve short-term political objectives, it could be detrimental to future generations. If India chooses to disregard the IWT unilaterally and sets a precedent in doing so, it wonโ€™t only impact its international reputation but also diminish its credibility when opposing alleged โ€œwater aggressionโ€ from China or contesting a Himalayan dam-building spree in the future. This understanding must form the basis of any future discussions and actions around the treaty.”

Courtesy: The News, https://www.thenews.com.pk/tns/detail/1095084-new-delhis-stand-against-the-hague

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